Our public policy favors enabling people to be able to direct the disposition of their assets at death if at all possible. We spend a lifetime gathering wealth and possessions and it is important to us that we control the manner in which our estates are distributed when we die. In order to facillitate the making of a will, the law sets a very low bar as far as testamentary capacity is concerned. The law presumes that a person is competent and it is generally necessary to rebut this presumption with expert medical proof.

Mental capacity is a relative thing. A person who is not competent enough to make a contract to buy or sell real estate or, for example, a complex commercial lease, may be quite competent to make a will. In order to make a will, it is necessary to be lucid and oriented to one’s surrounding. One needs to have an ability to comprehend the basic concepts involved in the making of a will and to understand that he or she is executing a set of instructions for how to dispose of property at death.

When I supervise the execution of a will by someone whose competence might later be questioned, I generally like to invite my witnesses to sit in on a brief and casual conversation where we discuss family, the events of the day or other topics such as sports and weather. I like to make sure that my client is aware of his or her surroundings and is alert. When we complete the execution of the will, I generally dictate and sign a memo to memorialize the conversation should I be required to demonstrate the competence of my client at a hearing pursuant to SCPA 1404.

Once I prepared a will for an elderly client who sat down in my library, looked me right in the eye and asked what he was doing sitting in my library. “It’s a beautiful day Paul” I told him ” and I think you just stopped by to say ‘hello’ “. With that, we helped him to his car and he was driven home. He had absolutely no concept of what it meant to make a will and totally lacked testamentary capacity.

Sometimes, it is necessary to make a will in a hospital. Even when a patient is only lucid part of the time, a will is valid if executed during a period of lucidity. To make a hosptital will, I will generally first go to the administrator’s office and ask him or her to accompany me to see the patient and to be one of the witnesses to the will. I will make sure the administrator checks my client’s chart at the nurses’ station to ascertain that he or she is not currently under the influence of mind-altering medications. If all is well, we execute the will and I follow up with a memo to the file. Such hospital wills are not possible where the patient is heavily sedated or where the charts reveal dementia.
Very often, senior citizens spending long periods of time in the hospital develop a “hospital psychosis” where they become disoriented and totally unfamiliar with their surroundings, and show signs of dementia. These same persons may totally regain their competence when they leave the hospital and are completely qualified to make a will.